What if it’s not the police?
Does this ruling mean that private citizens can also attach GPS tracking devices to other peoples cars? Or is it just the police? And if it is, why?
It’s a sticky issue. I don’t know whether to agree or disagree with him. But you gotta love a judge who will put stuff like this in an opinion:
Is it common to interpret Constitutional matters through the perspective of, “So long as the police don’t use this investigative technique very often, then nobody’s rights are being violated?”
That strikes me as somewhat strange for cases that don’t involve some kind of extraordinary, urgent circumstance (like having to break a door down without a warrant because of a fear someone’s life is in danger). This particular investigative technique clearly doesn’t fit into the sort of thing in which I’d think that common sense would dictate that the police be given more leeway…
Can’t you? Citizens arrest and all? I mean, good luck with making that work out well for you in the long run, but still.
And on less of a tangent, I don’t think this is a good analogy anyway, since attaching GPSs to things is not a special enumerated freedom of the police. It’s supposedly an extension of just ocularly watching and tailing cars, which any PI or even a private citizen can legally do. So wouldn’t the argument to allow cops to attach GPSs extend similarly to private citizens? (Presume that the car is parked on the street if necessary to avoid tresspassing issues.)
Also, is it actually true that the cops can’t paint your car purple? I’m picturing tagging you with a paintball gun rather than confiscating your car or something.
ISTM that this is equivalent to testimony - it is the same thing as refusing to give a detailed itinerary of your movements over the last few days. Certainly the pot dealer didn’t intend to give this evidence, or at least the police need to show that he did.
If the cops had come to Mr. Pot Dealer and said, “Tell us what you have been doing for the last few days”, Mr. PD would be within his rights (obviously) to refuse to do so. And the police are not within their rights to do anything to force him to come across with that testimony. By planting this GPS, they are compelling him to provide the list of where he has been driving, and without probably cause.
Leaving evidence isn’t what I object to - if the police follow him around on the public streets and write down where he is going, I have no problem with that.
But they came onto his private property to plant the GPS. This is not to collect anything; it was to force him to start providing the itinerary without his knowledge or consent, and without warning him of his right to avoid self-incrimination.
It is certainly legitimate to come onto your private property to ask you questions, because you can always refuse to answer. This guy was never given the chance. And not because the evidence was in plain sight - they had to take active steps to compel him to produce the evidence, by planting the GPS.
Did the Court say that the police could do this to anybody, for any reason?
Regards,
Shodan
I find that odd as well. If it wouldn’t be OK to do it to everyone (and the decision seems to leave open that it might not be OK to do it to everyone), then why is it OK to do it to anyone?
If I were to imagine an answer to that question, it would be “Well, the police had a good reason to suspect this particular individual of criminal wrongdoing.” In which case, great, then they should be able to get a warrant and prove it.
Naw, it’s more like they’re attaching a tow cable to the back of this car to the front bumper of a police car with cops sitting in it. (Invisible tow cable, tireless robot cops.) The suspect says nothing; there is no self-incrimination. He just is dragging the cops along with him wherever he goes, without knowing he’s doing it.
Police can do plenty of things without warrants that private citizens cannot.
That’s why.
The part that bugs me is the planting of a physical device. I’m not sure if legally that’s “trespass” or “privacy violation” or nothing at all, but it’s the part that makes me feel uncomfortable about this ruling.
Here’s the thing: If I don’t have a fence then legally I can’t expect that people won’t see into my yard. Maybe I can’t expect that they won’t enter my yard. But I can certainly reasonably expect them not to leave their things in my yard. And even if not that, I can certainly reasonably expect they won’t leave things attached to my car.
But forget about the yard. I don’t even care that much about where it happened. In general, I have a reasonable expectation that someone won’t alter my property or go attaching things to it, even if it’s sitting on a public street. Don’t I? As someone said, how is this any different than the police painting your car purple to make it easier to track (other than that their tampering would be readily detected in that case. And you seem to be saying (in your above response to me) that it’d be just as OK for them to plant something in my backpack, or slip it into my pocket, or tape it to the back of my shirt. It seems to me that such actions are inherently far more intrusive than just watching me from a distance, even if the information gathered from the two is the same.
Since when is this one of those things?
Well sure, obviously. But I think you’re missing the point of the question a bit, perhaps because you’re a lawyer and you don’t understand how clueless we non-lawyers are.
When you lawyer types throw around the phrase “no reasonable expectation of privacy”, non-lawyers like me think “Oh, I get it. The police can do stuff like monitor you without a warrant when you’re in a place where anyone can monitor you, because you can’t expect privacy there. In other words, it’s cool that the police do it because they’re just doing something any private citizen could have done.”
So then when you say “Well, the police can also plant a tracking device on you” we say “Whuh? That’s not something any private citizen can do! So surely I do have a reasonable expectation of privacy when it comes to tracking devices.”
Then you reply “No, it’s just police can do stuff that regular people can’t.” Which is true and we all know it, but it does nothing to clear up the confusion I described above.
Unfortunately, there are a boatload of cases that disagree with your view of “testimonial” evidence.
Drawing blood to show blood alcohol content: not testimony (Schmerber v. California, 384 US 757 (1966))
Performing a field sobriety test: not testimony (Pennsylvania v. Muniz, 496 US 582 1990))
Giving a handwriting sample: not testimony (Gilbert v. California, 388 US 263 (1967))
Participating in a line-up: not testimony (United States v. Wade, 388 US 218 (1967))
Provide a password to unlock your laptop that has child porn on it: not testimony (In Re Jury Subpoena to Sebastian Boucher, US Dist. Court, District of Vermont, 2009)
Since 1789. But as to electronic tracking, since the Supreme Court decided Knotts in 1983.
If I were to go up to a car parked on the street and slap a GPS transmitter to its underside, what could I be charged with, out of curiousity?
I mean, we all know it’s wrong (I think), but what’s the specific crime?
Would a private, licensed detective be granted the same latitude, say to track the movements of a wayward spouse who is using a friend’s car as a dodge? Or did the courts specifically restrict this power to law enforcement?
Bull. I defy you to show me one mention about GPS trackers in any document from 1789.
The closest you might get is if it said that a cop could attach himself to the outside of your vehicle, for the purpose of tracking it. Which, I will concede, might be entirely legal. (Er, assuming you don’t drive into private property, in which case he’d be tresspassing/searching without warrant.) But I still seriously doubt that you’ll be able to provide any 1789 document that says that even that is something that cops and only cops are specifically allowed to do.
In US v. Knotts, the police arranged for a store to slip an electronic beeper into the purchases of a guy and then tracked him via that beeper to a remote location where they discovered - surprise - a drug lab.
The Court said:
Are these cases of things they can make you do after being arrested? Or just at will?
Regards,
Shodan
[quote=“begbert2, post:36, topic:551657”]
Bull. I defy you to show me one mention about GPS trackers in any document from 1789.
The police have been able to do it since 1789 because that’s when the Constitution was adopted, and it did not forbid them from doing it. But since there were no such things as electronic surveillance tools at that time, the courts did not pronounce it OK until 1983.
Thus my edited addition: *But as to electronic tracking, since the Supreme Court decided Knotts in 1983. *
Don’t need to. States have always have plenary police power.
Cops can do it as long as nothing says they can’t.
OK, at least from the snippet you posted the court seems to only care about the kind of information the surveillance gave the police, not on what was done to get that information. But is there any limit to this? Can the police trick you into ingesting a tracking device? Can they implant a tracking device under your skin while you sleep? (Let’s say you’re asleep in a hotel room to get away from the trespassing issue.)
Is there no limit to how intrusive the method of gathering data may be, so long as the data itself is no different than what you could get from standard surveillance?
And if there is a limit, what is it? Or have the courts never ruled on that question?